1969 PLP 388 (SCMR)

Abu Md. Abdulla, Advocate Supreme Court instructed by K. Hossain, Attorney for Appellants. Abdul Ghani, Advocate Supreme Court instructed by Shahabuddin Ahmad, Attorney for the State: Date of hearing : 28th November 1957. MUHAMMAD MUNIR, C. J.‑This appeal, by special leave of this Court, must be allowed and the conviction and sentences set aside on the short ground that there was no evidence, on which the jury could have returned a verdict of guilty. The appellants were tried by a Sessions Judge for abetment of the murder of one Imam Ali, the prosecution case against them being that they had the deceased murdered by an unknown person. The whole evidence in the case was that a day before his body was found the deceased was taken away by one Hazrat Ali, who is now dead, to a place where among others Nazir Hossain Sarkar and Mujibur Rahman Talukdar, appellants, were present, on the representation that certain litigation, which was pending between the appellants and the deceased, was to be compromised. Imam Ali never returned home and his body was found on the following day bearing marks of violence which, according to the medical evidence, had caused his death. On this material alone the jury found the appellants guilty under section 302 read with section 109, and the Sessions Judge trying the case sentenced them both the transportation for life. The evidence in the case was entirely circumstantial, and it is a fundamental rule in such cases that an accused person cannot be found guilty unless all reasonable hypotheses, which are consistent with his innocence, have bean excluded. The learned Sessions Judge in his charge to the jury said nothing about this principle. If he had done so, the jury would have been confronted with the position that there was no evidence of actual murder by the appellants, nor any evidence of their having abetted somebody else to commit the murder. Therefore, the hypothesis that after the negotiations for a compromise the deceased was murdered by someone else, who had nothing to do with the appellants, was clearly a reasonable possibility, and if they had been properly directed, the jury, as reasonable men, were bound to return a verdict of "not guilty". As it is, the appellants have been convicted on no evidence, and we cannot help expressing our deep concern that the High Court should not have noticed this obvious aspect of the case and dismissed the appeal summarily. We, therefore, set aside the conviction and sentences and acquit the appellants, who will be released from prison forthwith. Appeal accepted.